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I used to think it was awful that life was so unfair. Then I thought, ‘wouldn’t it be much worse if life were fair, and all the terrible things that happen to us come because we actually deserve them?’ So now I take great comfort in the general hostility and unfairness of the universe. – Marcus Cole
You’ve been wronged. Worse than that, you were wronged by the one person you trusted more than anyone else in the world, and if that wasn’t bad enough, you can’t even get away! You’re tied together through spousal support, or a child custody case, or a claim for property division… or all three and perhaps even more. Frustration piles on top of frustration, and your lawyer expenses are climbing almost as fast as your blood pressure. Where is justice, and how do you get there from here?
Perhaps the very best way to start is by understanding how you don’t get there.
The danger of certainty.
Perhaps the most dangerous thing you can bring into any courtroom is an awareness of just how right you are. Some people go into their litigation knowing perfectly well that only a blind judge could possibly miss seeing the truth, and that only a corrupt judge would fail to give them what they need to stand tall again. They know that their cases are so strong that any lawyer with half a brain should have no problem getting the court to see things their way, and for the kind of money their lawyers are charging just to say “Good morning,” they expect the right result sooner rather than later.
People living in 1861 thought that the American Civil War would be over quickly, too.
You know every last detail of your situation in your bones from having had to deal with it each day, whereas your family law judge starts out not knowing you and your spouse from Adam and Eve. Much of what you do know, the judge might not even want to know. You might want rapid results, but the court system was set up to be thorough, rather than quick. Also, the focus of the court is different from what you might wish; the judge is not there to uplift the innocent and punish the wicked. Instead, your judge wants to make sure that children are protected, that assets are preserved, that the playing field is relatively level, and that long-term decisions are made only after each party has the opportunity to be heard in an orderly and civil proceeding that complies with the law.
One thing the judge is not there to do is to protect you from yourself. That leaves you free to get into all kinds of trouble, all from that sense of infallibility – or worse, defiant resentment – that comes from a certainty that you are right as right can be. The more successfully that you can entertain the possibility that your actions, words or choices may have contributed to your present painful circumstances, or that it might not matter to the court who may have been wronged by whom, the more likely you are to be able to see things the way the judge does. The better you can do that, the better your chances to be able to manage three of the most important things you can accomplish in court: setting achievable goals, picking battles you can win, and then persuading the judge to see things the way you do… all without standing in your own way.
The judge’s eyes.
Much of what matters to you might not matter at all to the judge; and since arguing with a family court judge is pointless or worse, understanding how the judge sees your case is critical to your success in court. Usually, your judge won’t care at all about what you or your ex might “deserve.” Courts don’t usually give out that kind of justice, which is usually best left to a more rarefied authority. Instead, the court is trying to resolve certain specific issues, and answer certain specific questions that have been raised by the parties or that are required by law. Details that don’t help the court do its job are obstacles, even if those same details are meaningful or even essential in your day-to-day life.
Consider some of the various kinds of disputes that arise in family court. Child custody cases in Pennsylvania have to do with your children’s rights, rather than with yours. Child and spousal support cases involve statewide support guidelines and formulas. Pennsylvania divorce cases are overwhelmingly no-fault, even if you can prove that your spouse is directly responsible for wrecking your marriage. As for property distribution, nobody asks whether you deserve your car; they just want to know whether your name is on the title. If you are handling your own case without a family lawyer, it is essential that you become familiar with the law that guides the judge’s hand in making decisions. If you are represented, your family lawyer should be explaining these things to you so that your expectations are realistic.
There are certain things not to expect from the court. Your judge isn’t going to read through an inch-thick stack of emails to see what’s really going on between you and your ex. He isn’t going to care about how things got to be the way they are, so much as he will care where they go from here. He isn’t going to know what happened behind closed doors, and he usually doesn’t need to know. Unless someone is playing the kind of games that interfere with the court’s desire to preside over an orderly proceeding, your judge is simply not thinking in terms of punishment, no matter how much your ex might deserve it.
Judges are seldom blind to what is going on behind the scenes, of course, but there are two things you can count on when you try to convince a judge that there is a clear “good guy” and “bad guy” in your divorce or child custody case: (1) the judge hears this sort of thing every day, and is going to take your claim with at least one grain of salt, and (2) the judge is going to take a good, hard look at your own conduct, too.
Give some thought to your conduct in general, and especially your conduct toward your ex. Good, civil and reasonable conduct is essential, even if (and sometimes, especially if) your ex is not similarly self-controlled. Your words and deeds toward your ex will speak for themselves, good or bad, and it is always safest to assume that your judge will never care why you acted as you did if your conduct causes a problem. I tell my clients the same thing that I tell my fifteen year-old stepdaughter: never use someone else’s actions as an excuse for your own bad behavior, no matter how wronged you think you are.
DON’T pass the broccoli.
Judges not only don’t need to know every little thing, they don’t want to be bothered with every little thing, either. They want to handle the big problems and the substantial assets, hopefully brokering a settlement, but at very least ensuring an orderly adjudication that makes the best use of the court’s time and the judge’s effort. Count on judges wanting to avoid getting sucked into micromanaging your affairs, or dealing with “pots and pans.”
Several years ago, an opposing counsel and I were meeting with a family law judge about an Allegheny County child custody case. I was explaining what we wanted and why the court should grant it. When the judge saw some of my demands as being on the nit-picky side, she interrupted me and said, “I don’t issue broccoli orders.”
That stopped me cold. She didn’t issue what?
My colleague and I listened as the judge unfolded a tale of two parents whose child hated the taste of broccoli. When they settled their child custody dispute, the order they drafted for their judge included a requirement that neither of them would ever feed the child broccoli. Sure enough, word reached one parent that the other had fed the child the Forbidden Vegetable, and off they went to court to argue about it! The judge, who had signed the order without bothering to read it, was not impressed.
Another judge recently told me: “When I go home to my wife tonight and she asks me what I did today, I want to tell her that I did something meaningful. Don’t give me small stuff.”
Whether you agree or disagree with the judge’s attitude, the fact is that courts can’t micromanage, and judges want to avoid getting bogged down in “pots and pans.” Right and wrong usually don’t come into the picture. Whether it be divorce, property distribution, alimony or child custody, judges try to identify and solve problems in hope to minimize the prospect of endless litigation. They want to do the best they can on your case before putting it aside to move on to the next one. Judges tend not to be fond of “frequent fliers,” and especially people who seem motivated by bitterness and anger or a desire to use the court system itself as a weapon against the other side.
A lawyer has to follow his own advice.
Last year, I got a parking ticket after enforcement times for the parking meters on the street switched – unbeknownst to me – from 6:00 p.m. to 10:00 p.m. I came back to my car to find a $30 ticket, and I was furious about how unfair that was.
What did I do about it? I’m a lawyer, so of course I decided to challenge the ticket. I demanded a hearing, and took considerably more than $30 worth of time off from my office in order to attend. After a short wait my case was called, and I stood in a small courtroom that was empty but for me and the magistrate. The officer who wrote the ticket was not present, so I figured that should have been the end of the matter: after all, don’t we have a Constitutional right to confront the witnesses against us? The magistrate (who took an oath to uphold the U.S. Constitution, just the same as I did) thought otherwise. I was guilty the moment I walked into the room, and never mind the proof. Now my fine was $65 instead of $30, to account for court costs. Next case.
Over twenty years of keeping a cool head in court went out the window in an eyeblink now that it was me in hotseat. I found that I liked being in that position about as much as do any of my clients. This “court” was obviously nothing but a moneymaking racket disguised as justice, and I wasn’t going to let them win, damn it! I went straight to the appeals desk and filled out the necessary forms to schedule a summary appeals hearing and leave that magistrate in my dust. Winning would make the ticket go away once and for all. Losing would raise the stakes from $65 to over $100. I gave no thought to the value of the additional professional time I would lose to chase this particular will o’ the wisp; this was about principles.
Then twenty-four hours went by, and my brain started working again about the time that my blood started to cool. I said to myself, “If I went to myself as a lawyer and asked for advice, what would I have to say about this?” That is about the time I began to realize that this fight for principle was costing me far more than it would ever get me, even if I won… and if the fix was already in just as I figured, winning wasn’t much of an option, anyway. I decided to cut my losses rather than put good money and time after bad; I canceled the hearing, wrote a check, and put the matter behind me once and for all.
I want a lawyer to fight for me!
If you want to finance your family lawyer’s next vacation singlehanded while imagining that it will buy you anything but debt and frustration, go ahead and prepare for war instead of preparing for court. Find a family law attorney with a reputation for aggression who tells you just what you want to hear, and you’re off to the races. If you want to know what your “bulldog” lawyer will do for you, just imagine a car with a broken muffler; you will get plenty of roaring when you step on the gas… but don’t expect any extra speed or performance out of all that noise.
The moment litigation begins, unless someone simply gives up and walks away, there are two – and only two – sources of control over your case: either you and your ex working together in agreement, or the family law judge who will tell both of you how things are going to be. That makes the judge’s perspective crucial. If you want to use the judge’s gavel as a bludgeon for your ex, you had better be very sure that the judge is going to cooperate; otherwise, you can expect that kind of thinking to result in you making choices that will send you down in metaphorical flames while costing you many sorts of opportunities: to be a more involved parent to your child, to get your fair share of your marital estate, or your opportunity to reach a reasonable settlement that will let you turn your eyes ahead, rather than back.
The family court in Allegheny County, Pennsylvania has a one family/one judge policy. Surrounding counties with smaller population may have only one or two judges who handle family matters. This means that clean slates are going to be hard to come by, once a judge gets to know you, your ex, and your situation. Judges keep their notes and have long memories, and some of the most dangerous things a judge might say can begin with, “I remember this guy…”
However wronged you have been, and however reasonable your anger, don’t prepare for war. Instead, set the board for chess. High stakes and overwhelming personal experience can leave you thinking with your emotions, especially your negative ones, and impel you into the kind of scorched-earth conflict that – even if you win – can leave you master of the rubble. Use your family law attorney as a reality check, and listen to what he tells you.
The bottom line.
A good lawyer will help you set achievable goals and pick winnable battles rather than fighting just to display his aggression and rhetorical skill, all on your dime. Turning everything into a no-prisoners fight is a great way not only to generate huge legal fees, but also to show your judge that you are more interested in the fight than in the goal.
Don’t count on getting justice just because you deserve it, and always remember that your ex is demanding justice, too. Never imagine that justice comes quickly or without cost (and not just financial cost), and give thought to whether the prize you seek is truly worth what you may have to sacrifice to achieve it. Remember that those who demand judgment are themselves judged, and that some who load weapons in the name of justice end up facing them, instead.
Justice may be blind, but you don’t have to be. Play it cool.
If you need legal assistance with your divorce or family law matter in Southwestern Pennsylvania, call my office to set up a personal consultation with a Pittsburgh family law attorney. This blog will feature periodic updates. Consider subscribing! Please do not comment anonymously, and do not post anything that you consider confidential. I try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that I will not offer legal advice via the Internet.
Michael B. Greenstein
Greenstein Family Law Services, P.C.
1789 S. Braddock Avenue, Suite 590
Pittsburgh, PA 15218